Citation NR: 9800937
Decision Date: 01/14/98 Archive Date: 01/21/98
DOCKET NO. 96-27 040 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an increased rating for residuals of a
fracture of the upper and lower jaws with loss of teeth,
currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. E. Centanni, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1961 to
January 1965.
This appeal comes before the Board of Veterans’ Appeals
(Board) from an August 1994 regional office (RO) rating
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected residuals of
a fracture of the upper and lower jaws with loss of teeth is
more severe than is contemplated for by the current
evaluation. He states that he has lost both teeth and bone
in his mouth, which cannot be replaced. Moreover, he states
that he has been told that he has a serious bony defect in
his mouth. Therefore, the veteran contends that an
evaluation in excess of 50 percent for residuals of a
fracture of the upper and lower jaws with loss of teeth
should be granted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an evaluation in excess of
50 percent for residuals of a fracture of the upper and lower
jaws with loss of teeth.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO,
insofar as possible.
2. The veteran’s residuals of a fracture of the upper and
lower jaws with loss of teeth is manifested by loss of more
than half of the maxilla, which is replaceable by prosthesis.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 50 percent for
residuals of a fracture of the upper and lower jaws with loss
of teeth has not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.150, Diagnostic Code 9914 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
In a rating decision dated in August 1994, the RO granted
service connection for residuals of a fractured jaw with loss
of teeth. The decision was based on the service medical
records and a Department of Veterans Affairs (VA) examination
report.
The service medical records showed that in March 1962 the
veteran had sustained multiple facial injuries in a motor
vehicle accident which was determined to be in line of duty.
Moreover, the medical records revealed a fracture of the
maxillae, compound comminuted and simple fractures of both
the right and left zygomas and both mandibles. An open
reduction of the displaced left mandible fracture was
accomplished and teeth numbers, seven, twenty-two, twenty-
three, twenty-four, twenty-five, and twenty-six were removed.
In June 1962, teeth numbers eleven, twelve, thirteen,
fourteen, and fifteen were also removed.
The VA examination, conducted in July 1994, revealed bridges
in the mouth with possible broken bridge, but the veteran
refused removal of the bridge. The mandibular/maxillae
fractures were well healed and no other deformities were
noted.
Based on the findings reported in the service medical records
and the VA examination report, the RO assigned a
noncompensable rating for his service connected residuals of
a fractured jaw with loss of teeth, under diagnostic code
9904.
In March 1994 the veteran received treatment at the VA dental
clinic. The record showed that the veteran was seen for
possible referral to the prosthesis department. No change in
the veteran’s condition was noted at that time and was
evaluated for prosthesis impressions.
In April 1995, the veteran underwent a VA examination. The
objective findings revealed multiple missing teeth and
chronic periodontal disease. The maxillae was severely
resorbed. The opening of the veteran’s mouth was limited to
thirty millimeters and occlusion was abnormal. Wires were
still in place below the areas of teeth twenty through
twenty-two. There was minimal lateral and protrusive
movements. The examiner noted a need for dental treatment.
Based on these findings, the RO assigned a 20 percent
evaluation, in a rating decision dated in January 1996, under
diagnostic code 9905, effective May 1994.
A statement, dated in January 1996, from a VA prosthodontist,
noted that there was extensive bone loss in the maxilla.
Moreover, the doctor noted that teeth seven through fourteen
had been avulsed resulting in severe bony defect from the
midline area of number thirteen. In addition, the doctor
commented that stability, retention, and function of
maxillary removable partial denture was greatly compromised
and extensive bone grafting with or without implants would be
necessary to improve the condition.
In May 1996, the VA prosthodontist submitted another
statement which noted that the veteran had only five
remaining maxillary teeth. It was further noted that the
veteran had lost more than fifty percent of the maxillary
bone and there was a negative ridge architecture from the
area of tooth number seven to the area of tooth number
thirteen. The height of the ridge in the left anterior was
close to the nasal spine. Moreover, the doctor commented
that with the extensive loss of maxillary bone, mastication
and speech was greatly impaired.
Based on the findings as reported by the VA prosthodontist,
in a rating decision dated in June 1996, the RO assigned a 50
percent evaluation for the veteran’s service-connected
residuals of a fracture of the upper and lower jaws with loss
of teeth, under diagnostic code 9914.
In November 1996, another statement from the VA
prosthodontist was submitted. The statement noted that the
left maxilla had lost 120 percent bone height, which resulted
in a serious bony defect. With such a defect, stability,
retention, and function were greatly impaired. Moreover, the
doctor commented that a removable denture cannot restore the
defect to adequate form, function, and comfort. In addition,
it was noted that final treatment would include crowns on
teeth two through six, fixed partial dentures on teeth
eighteen through twenty, twenty-one through twenty-eight, and
teeth twenty-nine through thirty, and a maxillary removable
partial denture.
Analysis
The veteran has submitted a well-grounded claim under the
meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the
veteran has submitted a claim which is plausible.
Furthermore, the record is complete, in that there is no
indication of any outstanding treatment records available
which have not been associated with the claims file. Thus,
the Board notes that the VA has adequately assisted the
veteran.
Disability evaluations are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4
(1996). Consideration is given to the potential application
of the various provisions of 38 C.F.R. Part 3 and 4, whether
or not they are raised by the veteran, as required by
Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In addition,
the entire history of the veteran’s disability is considered.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1996).
Loss of more than half the maxilla that is replaceable by
prosthesis will be assigned a 50 percent evaluation. Loss of
more than half the maxilla that is not replaceable by
prosthesis will be assigned a 100 percent evaluation.
38 C.F.R. § 4.150, Diagnostic Code 9914.
The record reveals that the veteran sustained an injury to
his face during his military service. Moreover, the record
shows that as a result of his inservice injury, the veteran
sustained extensive damage to his mouth and jaw which
resulted in loss of most of his teeth. As a result of the
residuals of his fracture, the RO has rated the disability by
analogy under diagnostic code 9914. See 38 C.F.R. §§ 4.20,
4.27 (1996). However, the medical evidence of record does
not demonstrate that the veteran’s residuals of a fracture of
the upper and lower jaws with loss of teeth is so severe so
as to warrant a 100 percent evaluation.
The medical evidence of record, which consists of statements
from a VA prosthodontist, notes that the veteran’s disability
has resulted in the loss of more than half of the maxilla.
In addition, the Board notes that the prosthodontist’s
statement dated in November 1996 states that a removable
partial denture cannot restore the veteran’s bony defect to
adequate form, function and comfort. However, the doctor
does not opine that the veteran’s maxilla is not replaceable
by prosthesis. In fact, the doctor states that as a final
treatment a fixed denture and a removable maxillary partial
denture will be used. Therefore, based on the medical
evidence of record, the findings do not show that the
veteran’s loss of half of the maxilla is not replaceable by
prosthesis. Thus, an evaluation in excess of 50 percent is
not warranted.
As such, the Board finds that the current 50 percent
evaluation contemplates the residuals of the fracture of the
upper and lower jaws with loss of teeth and a higher
evaluation is not applicable.
ORDER
An evaluation in excess of 50 percent for residuals of a
fracture of the upper and lower jaws with loss of teeth is
denied.
DEBORAH W. SINGLETON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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